Obama Wants FISA Amendment Challenge Dismissed

The Obama DOJ is being asked to dismiss a challenge to the 2008 FISA amendments, which were supported by Obama despite his threat to filibuster the bill, on standing grounds. There’s a great FARK headline for this: “The GOP’s conundrum: Created by Bush, so it’s good. Wait, it’s supported by Obama, so it’s bad. Crap, the ACLU is against it so it has to be good.”

The Obama administration is urging the Supreme Court to halt a legal challenge weighing the constitutionality of a once-secret warrantless surveillance program targeting Americans’ communications that Congress eventually legalized in 2008…

The administration is asking the Supreme Court to review an appellate decision that said the nearly 4-year-old lawsuit could move forward. The government said the ACLU and a host of other groups don’t have the legal standing to bring the case because they have no evidence they or their overseas clients are being targeted.

The case arrives at the high court’s inbox after having two different outcomes in the lower courts. It marks the first time the Supreme Court has been asked to review the eavesdropping program that was secretly employed in the wake of 9/11 by the George W. Bush administration, and eventually largely codified into law four years ago.

A lower court had ruled the ACLU, Amnesty International, Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation magazine, PEN American Center, Service Employees International Union and other plaintiffs did not have standing to bring the case, because they could not demonstrate that they were subject to the eavesdropping.

The groups appealed to the 2nd U.S. Circuit Court of Appeals, arguing that they often work with overseas dissidents who might be targets of the National Security Agency program. Instead of speaking with those people on the phone or through e-mails, the groups asserted that they have had to make expensive overseas trips in a bid to maintain attorney-client confidentiality.

The plaintiffs, some of them journalists, also claim the 2008 legislation chills their speech, and violates their Fourth Amendment privacy rights.

Without ruling on the merits of the case, the appeals court agreed in March with the plaintiffs that they have ample reason to fear the surveillance program, and thus have legal standing to pursue their claim.

This particular lawsuit deals only with the NSA intercepting communications with people outside the United States, but we know from Mark Klein’s testimony that they are actually intercepting nearly every electronic communication of any kind within the United States as well. This legal challenge would not touch that larger issue, though if the court were to issue a broad prohibition on intercepting any communication without a warrant, as they should do, that would restrict both programs. The odds of that happening, unfortunately, are slim to none. And even if they ruled correctly on this case, it would only lead to yet another level of government privilege:

But even if the Supreme Court rejects the petition by Solicitor General Donald B. Verrilli Jr., that does not necessarily mean the constitutionality of the FISA Amendments Act will be litigated.

The lawsuit would return to the courtroom of U.S. District Court Judge John G. Koeltl in New York, where, if past is prologue, the Obama administration likely would play its trump card: an assertion of the powerful state secrets privilege that lets the executive branch effectively kill lawsuits by claiming they threaten to expose national security secrets.

Judge Vaughan Walker, who later gained notoriety for his ruling in the Prop 8 case, rejected the use of the State Secrets Privilege in a similar case, but the FISA amendments also included retroactive immunity for the telecoms, the defendants in that particular suit, so it ended up being dismissed anyway. The Supreme Court has yet to rule directly on the State Secrets Privilege as applied to such cases.

But notice also the delay game being played here. First they challenge the case on standing grounds and it takes at least 5 years for that to work its way through the courts. If they lose, they’ll then attempt to get it dismissed based on the State Secrets Privilege, which will take another 5 years to work its way through the system. And all that happens before the case can even be considered on the merits. Even if the government ultimately loses the case — which, as I said, is pretty unlikely given the entirely undue deference the courts tend to give in these circumstances — it has bought itself 10-15 years of continuing the surveillance program.